Benson-Jones v

Sysco Food Servs. of Atlanta, LLC, 287 Ga. App. 579, 651 S.E.2d 839 (2007). Reimbursement under indemnity agreement. — Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to a surety company in the company’s reimbursement action against indemnitors because the company met the company’s burden of showing good-faith payments on the bonds and the indemnitors failed to meet their burden of showing bad faith by the company; issues as to the validity, reliability, and admissibility of supporting documents and affidavits lacked merit as the issue was not whether a factual dispute existed, but whether there was any evidence of bad faith on the part of the company for which nothing was offered by the indemnitors. Anderson v. United States Fid. & Guar. Co., 267 Ga. App. 624, 600 S.E.2d 712 (2004). Order granting summary judgment to an LLC was upheld, when, under the plain terms of an indemnity provision 851 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) between the LLC and one of its shareholders, the shareholder was liable for costs associated with defending claims made by its agent against the LLC; but, the shareholder was not liable for costs associated with a suit over the payment of commissions, as such did not relate to the marketing and sales efforts covered by the indemnity clause and undertaken by the shareholder. SRG Consulting, Inc. v. Eagle Hosp. Physicians, LLC, 282 Ga. App. 842, 640 S.E.2d 306 (2006). Custody case could not determine other civil issues. — Because the trial court relied upon documents other than the pleadings, a motion to dismiss should in fact have been treated as a motion for summary judgment; a juvenile court had no jurisdiction over claims of fraud, breach of contract, perjury, and defamation made by one former spouse against the other, and thus a custody case between the parties, which was litigated in juvenile court, was not an adjudication of the spouse’s claim for purposes of res judicata. Litsky v. Schaub, 269 Ga. App. 254, 603 S.E.2d 754 (2004). Divorce. — Because questions pertaining to alimony, property, and all other issues of the marriage were intended to be covered by the parties’ prior separation agreement in the event the parties divorced, and the wife freely entered into the agreement, her subsequent claim for alimony and an interest in the marital home were properly dismissed via summary judgment. D’Errico v. D’Errico, 281 Ga. 508, 640 S.E.2d 30 (2007). Personal injury. — Because the plaintiff, in a personal injury action, having failed to present some evidence that the defendant’s security was inadequate or that any such inadequacy was the proximate cause of the plaintiff ’s injuries, summary judgment was properly granted to the defendant. Collins v. Shepherd, 212 Ga. App. 54, 441 S.E.2d 458 (1994). Trial court did not abuse the court’s discretion in granting the defendant motorist summary judgment based on a lack of timely service of process in an action by 9-11-56 the plaintiffs, a driver and the driver’s passenger, to recover damages for personal injuries and property damage because: (1) the renewal complaint was timely filed within the applicable limitation period, but there was no evidence that the motorist was served within five days after the applicable limitation periods of O.C.G.A. §§ 9-3-31 and 9-3-33 for property damage and personal injury claims, respectively, expired, or that the motorist was served at all; and (2) the plaintiffs offered only the conclusory allegation of the plaintiffs’ counsel in an affidavit that diligent efforts were made to serve the motorist after a failed attempt at service in one county led to the discovery that the motorist had apparently relocated to a different area in Georgia; the unsuccessful attempt alerted the plaintiffs to a problem with service, requiring the plaintiffs to exercise the greatest possible diligence in serving the motorist, but the plaintiffs failed in the plaintiffs’ burden of proving such efforts by failing to offer specific details regarding what efforts the plaintiffs made to locate and serve the motorist. Carter v. McKnight, 260 Ga. App. 105, 578 S.E.2d 901 (2003). Summary judgment was properly granted to dismiss a dump truck driver’s insurer from a counterclaim arising in a motor vehicle accident case because the insurer was statutorily exempt from any direct action against the insurer. Morgan Driveaway, Inc. v. Canal Ins. Co., 266 Ga. App. 765, 598 S.E.2d 38 (2004). Analyzing a personal injury action filed against an insured, and a declaratory judgment action subsequently filed by its insurer, the Court of Appeals of Georgia erred in holding that an insured was estopped from asserting compliance with its insurer’s policy provisions regarding notice, and additionally erred, on that basis, in reversing the denial of summary judgment to the insurer in the insurer’s declaratory judgment action as neither res judicata nor collateral estoppel barred inquiry into the question of whether the insureds’ notice of a lawsuit to the insurer was timely. Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 629 S.E.2d 260 (2006). Trespass. — Trial court did not err in granting summary judgment to the plain- 852 tiff on the defendants’ counterclaims for trespass to property, wrongful filing of a dispossessory action, and illegally acquiring title to the defendants’ property because all of the counterclaims were based on the erroneous theory that the defendants were the owners of the property that the defendants had lost by foreclosure. Green v. Sommers, 254 Ga. App. 446, 562 S.E.2d 808 (2002). Promissory notes. — Trial court properly granted summary judgment to a bank and against the obligors on the promissory notes that the obligors executed and allegedly defaulted on, and on the obligors’ counterclaim for intentional infliction of emotional distress as the evidence showed the obligors executed the notes, defaulted on the notes, had no defense, and did not show how modification agreements to which the obligors were not parties relieved the obligors of their obligations; furthermore, the obligors did not show that the attorney was acting for the bank when the attorney allegedly made a statement to a third party that the attorney was going to make life miserable for the obligors, and, thus, the obligors did not show an intentional infliction of emotional distress claim. Reece v. Chestatee State Bank, 260 Ga. App. 136, 579 S.E.2d 11 (2003). Rights in life insurance policy. — Insured was properly granted summary judgment in a lawsuit filed by a beneficiary to whom the insured assigned the right to collect the proceeds of a supplemental group life insurance policy because the insured did not die, and cancelled the assigned policy, as the terms of the viatical settlement allowed the beneficiary to have a vested right in a renewal of that policy, but not in a replacement policy. Livoti v. Aycock, 263 Ga. App. 897, 590 S.E.2d 159 (2003). Inappropriate based on defect in expert’s affidavit. — Defect in an expert’s affidavit attached to the complaint in a legal malpractice action should be attacked via motion to dismiss, and summary judgment on the basis of such defect was inappropriate. Freeman v. Pittman, 220 Ga. App. 672, 469 S.E.2d 543 (1996). Action for return of earnest money. — Trial court erred in granting summary 9-11-56 judgment, pursuant to O.C.G.A. § 9-11-56(c), to a seller in an action to recover earnest money for the sale of a shopping center; the purchaser was entitled to the return of the money because the purchaser could not obtain financing, which was a condition for the return of the money under the terms of the contract, interpreted pursuant to O.C.G.A. §§ 13-2-1 and 13-2-2. Ali v. Aarabi, 264 Ga. App. 64, 589 S.E.2d 827 (2003). Prison nurse not entitled to summary judgment on prisoner’s overdose claim. — Trial court properly denied a prison nurse’s motion for summary judgment on the estate administrators’ 42 U.S.C. § 1983 claim against the nurse, following the death of an inmate by Tylenol overdose, because the administrators presented sufficient evidence that the nurse, who examined the decedent, refused to act despite knowledge of the substantial risk of harm to the decedent. Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003). Prison officials not entitled to summary judgment. — Trial court incorrectly denied a prison official’s motion for summary judgment on the estate administrators’ 42 U.S.C. § 1983 claim against the official, following an inmate’s death from a Tylenol overdose because, although the official was aware that the decedent faced a substantial risk of serious harm, the administrators did not show that the official displayed deliberate indifference to the decedent’s serious medical needs. Furthermore, the administrators failed to prove that the official was acting outside the scope of the person’s official duties or employment; consequently, even if the official acted with malice or intent to injure the decedent, the official was immune from liability on the administrators’ state law claims against the official. Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003). Action for breach of lease. — Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a lessor in a lessee’s breach of contract action; pursuant to a lease for roof space to be used for a billboard, the lessee defaulted by interfering with a cellular antenna already placed on the roof and the 853 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) lessor provided the proper notice of termination. Tower Projects, LLC v. Marquis Tower, Inc., 267 Ga. App. 164, 598 S.E.2d 883 (2004). Public nuisance. — Trial court correctly entered summary judgment against the plaintiffs on the plaintiffs’ public nuisance count because the evidence did not show that all members of the public who came into contact with the river were injured, and thus, the plaintiffs’ public nuisance cause of action was effectively erased. During the decades prior to the deaths, no other person had ever drowned when entering the river via the boat ramp, whether during power generation or otherwise, and the other six boys who accompanied the decedents into the water on the ramp that day were uninjured. White v. Ga. Power Co., 265 Ga. App. 664, 595 S.E.2d 353 (2004). No evidence for jury in inadvertent distribution of pornographic material. — Summary judgment was properly granted to the video store on the parent’s suit against the store after the parent discovered that a children’s video contained explicit pornographic material, as the intervening criminal act of an unknown third party who recorded explicit pornographic material on the store’s children’s videotape was not reasonably foreseeable; thus, the store met the store’s burden under O.C.G.A. § 9-11-56(c) by establishing that there was no evidence to create jury issues on the essential elements of the parent’s case. Davis v. Blockbuster, Inc., 258 Ga. App. 677, 575 S.E.2d 1 (2002). Defendants’ negligence in allowing gun to be accessible prevented summary judgment. — Although at trial the burden of proof as to each element of negligence would be upon the plaintiff, on summary judgment the burden is upon the defendants as movants to negate at least one of the elements, and if the defendants’ evidence fails to conclusively refute the plaintiff ’s allegations of their negligence in allowing a gun to remain in a place accessible to a trustee who robbed 9-11-56 and raped the plaintiff, the defendants’ motion for summary judgment should be denied, as a jury could reasonably conclude that the trustee’s criminal action was foreseeable and that the defendants were negligent by knowingly allowing a gun to be kept in an unlocked drawer in an area where a convicted criminal was authorized to be in the performance of the criminal’s duties. Tolbert v. Tanner, 180 Ga. App. 441, 349 S.E.2d 463 (1986). Summary judgment awarded to bank. — Since two affidavits presented by a bank’s risk operations officer averred that a business card application filed by both debtors represented the agreement that they would both be jointly and severally liable for the full account in the event of default, the bank was entitled to summary judgment. Nugent v. SunTrust Bank, 263 Ga. App. 730, 589 S.E.2d 298 (2003). Recoupment from attorney. — Partial summary judgment was properly granted to a client in the client’s contribution action to recoup the attorney’s portion of the judgment the client satisfied since the evidence in the record proved the client paid the judgment in full by entering into a release agreement with the prevailing party, and the attorney failed to point to any evidence in the record to prove otherwise. Gerschick v. Pounds, 262 Ga. App. 554, 586 S.E.2d 22 (2003), overruled on other grounds by VATACS Group, Inc. v. HomeSide Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006). Propriety of Summary Judgment Seventh amendment right to jury. — Summary judgment is authorized if there are no issues of material fact in dispute; in such circumstances the jury, as trier of fact, has no role, and the opposing party’s Seventh Amendment rights are not infringed. Barrett v. Independent Order of Foresters, 625 F.2d 73 (5th Cir. 1980). Intended scope of summary judgment. — If a motion for summary judgment were to be denied in every instance in which an issue appears in the pleadings by allegation and denial, there would be little or no use or need for summary judgment as there would be no functional 854 difference between a motion therefor and the traditional system of taking advantage of defects in the pleadings by demurrers; it is obvious that the General Assembly intended summary judgment to have a greater and more beneficial scope. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Summary judgment is an extreme remedy and should be awarded only when the truth is quite clear. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Courts cautious in granting summary judgment. — Since summary judgment is a peremptory method of disposing of a case once and for all on its merits, courts will be cautious about foreclosing parties from a valid defense. Simmons v. State Farm Mut. Auto. Ins. Co., 111 Ga. App. 738, 143 S.E.2d 55 (1965) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Trial essential if genuine issue exists. — If there is a genuine issue as to any material fact, a trial under the normal process is absolutely essential. Davis v. Holt, 105 Ga. App. 125, 123 S.E.2d 686 (1961) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Absence of genuine issue and entitlement to judgment are prerequisites. — Because the strategies by a county and the municipalities within the county under the Service Delivery Strategic Act, O.C.G.A. § 36-70-20 et seq., had nothing to do with a developer’s actions, given that it was not the decision of the developer, or any individual property owner, to control the property owner’s supplier of water, the developer was properly granted summary judgment in a city’s action for declaratory and injunctive relief. Also, the city’s quest to overturn the May 2005 service delivery strategy was rendered moot by the enactment of later strategy. City of Demorest v. Town of Mt. Airy, 282 Ga. 653, 653 S.E.2d 43 (2007). In a suit filed by the car owner against a lienholder for wrongful repossession and conversion of the subject vehicle, summary judgment to the lienholder and partial summary judgment to the owner was inappropriate given that questions of fact 9-11-56 remained as to whether the vehicle was on a lienholder’s debtor’s lot for repairs, or if the vehicle had been sold or consigned to the debtor, and was thus subject to the lienholder’s security interest. Gavahi-Kashani v. Auto. Fin. Corp., 286 Ga. App. 69, 648 S.E.2d 672 (2007). Because material fact questions remained regarding the quality of a utility company’s inspection and whether the company had constructive knowledge of an electrical wiring defect outside of a homeowner’s home, summary judgment was properly denied. Schuessler v. Bennett, 287 Ga. App. 880, 652 S.E.2d 884 (2007), cert. denied, 2008 Ga. LEXIS 230 (Ga. 2008). Lack of jury issue. — Because the evidence was not such as to raise a jury issue, the trial court therefore properly granted summary judgment in favor of the plaintiff. Davison’s Auto Serv. Co. v. Security Ins. Co., 187 Ga. App. 220, 369 S.E.2d 538 (1988). Trial court properly granted summary judgment to a relative after the home healthcare agency sued the relative for a balance due on a contract the relative signed to have nursing services provided to the relative’s father. The relative clearly signed in a representative capacity the contract that the home healthcare agency drafted and provided for the relative to sign, the principal, the relative’s father, was clearly named in the document as such, and it was evident that the contract was substantially in the name of the principal; accordingly, there was no issue for the jury to decide because the contract obligated the father, not the relative, to pay. Associated Servs. of Accountable Prof ’ls, Ltd. v. Workman, 265 Ga. App. 348, 593 S.E.2d 882 (2004). Because there was no dispute that: (1) the owner sold the property to a tenant obtained by the realty firm and that the sale occurred during the lease term; and (2) the realty firm satisfied the precedent terms under its commission agreement with the owner entitling the firm to a full commission and prejudgment interest thereon, the trial court erred in denying the realty firm summary judgment on this claim. Tommy McBride Realty v. Nicholson, 286 Ga. App. 135, 648 S.E.2d 468 (2007). 855 Propriety of Summary Judgment (Cont’d) In an action arising from the sale of a condominium unit, because there was no issue of material fact as to whether the declaration of condominium’s ‘‘lender’’ exception applied to the sale of the unit to the buyer, the trial court erred in concluding that the issue was for the jury. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, 2008 Ga. LEXIS 316 (Ga. 2008). Regulatory investigation. — Trial court properly dismissed a declaratory judgment action brought by a bank and a cash advance lender, which was operating as an agent for the bank, to stop the Georgia Industrial Loan Commissioner from conducting an investigation of their lending activities because the Commissioner was authorized to conduct an investigation of the two entities’ loan activities, in spite of the lender’s claim that the bank and the lender were operating under the authority of federal banking law. BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 598 S.E.2d 343 (2004). Directed verdict compared. — Grant of summary judgment may be improper even though, at trial, a grant of directed verdict may be proper. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972). Summary judgment for the defendant is not necessarily authorized merely because under the evidence adduced the defendant might be entitled to a directed verdict on trial. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff ’d in part and rev’d in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970). Grant of summary judgment may be improper even though, at trial, a grant of a directed verdict may be proper, if the party making the motion for summary judgment is not required to carry the burden on the trial of the case. Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 9-11-56 Ga. App. 789, 178 S.E.2d 710 (1970); Ray v. Webster, 128 Ga. App. 217, 196 S.E.2d 175 (1973). Summary judgment may be granted on evidence that would compel direction of a verdict and should be denied when a directed verdict would be improper. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981). Trial court properly granted summary judgment to the tax sale purchaser and other parties, and properly denied the summary judgment motion filed by the tax sale challengers as the purported sale of the property by the bankrupt party to one of the tax sale challengers was void ab initio since the sale was conducted in violation of the bankruptcy court’s automatic stay and the bankrupt party did not first obtain permission from the bankruptcy court to sell the property to one of the tax sale challengers. As a result, the tax sale challengers did not have standing to challenge the tax sale of the property at issue. Edwards v. Heartwood 11, Inc., 264 Ga. App. 354, 590 S.E.2d 734 (2003). Failure to state a claim compared. — Because the Georgia superior court should not have exercised the court’s equitable jurisdiction when the property owners failed to exhaust the owners’ administrative remedies under O.C.G.A. § 48-5-311 through the county board of equalization, the superior court’s judgment for declaratory relief in favor of the property owners at summary judgment was reversed; instead, the superior court should have dismissed the property owners’ suit for failing to state a claim. Chatham County Bd. of Assessors v. Jepson, 261 Ga. App. 771, 584 S.E.2d 22 (2003). Absence of reasonable explanation in medical malpractice case. — Summary judgment in favor of a doctor in a medical malpractice case was affirmed because a patient failed to point to any damage flowing from the doctor’s single alleged failure to communicate a correct diagnosis that was not time barred; additionally, the patient admitted in a deposition that the doctor did tell the patient of the diagnosis, although this contradicted the patient’s own affidavit testimony, and because the favorable portion of a party’s 856 self-contradictory testimony was the only evidence of such party’s right of recovery, the opposing party was entitled to summary judgment in the absence of a reasonable explanation. Oliver v. Sutton, 265 Ga. App. 787, 595 S.E.2d 598 (2004). Summary judgment should be granted only in cases in which undisputable, plain, and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached. Stuckes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976). Absence of genuine issue and entitlement to judgment are prerequisites. — Genuine issue as to a material fact is required in order to preclude summary judgment. Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768 (1961) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Summary judgment cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact; however, a shadowy semblance of an issue is not enough to defeat the motion. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962) (decided under Ga. L. 1959, p. 234, § 1 et seq.). It is permissible to grant a motion for summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Malcom v. Malcolm, 112 Ga. App. 151, 144 S.E.2d 188 (1965) (decided under Ga. L. 1959, p. 234, § 1 et seq.). On summary judgment, the inquiry must be whether there remains any genuine issue of fact after consideration of the pleading and supporting evidence. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972). If evidence produced in a motion for summary judgment pierces the allegations of the pleadings and shows that there is no genuine issue of material fact, a summary judgment motion should be sustained. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972). Essence of a motion for summary judgment is that there is no genuine issue of material fact to be resolved by the trier of facts. Turner v. Noe, 127 Ga. App. 870, 195 S.E.2d 463 (1973). Grant of a motion for summary judg- 9-11-56 ment is not ‘‘appropriate’’ within the meaning of subsection (e) of O.C.G.A. § 9-11-56 unless the moving party is entitled to judgment as a matter of law. Southern Protective Prods. Co. v. Leasing Int’l, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975). If the record has been fully developed by depositions and affidavits, and construing all the facts and inferences to be drawn therefrom in favor of the nonmovant, such party would not be entitled to have a jury verdict stand, a grant of summary judgment is proper. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976). Summary judgment should be granted only in cases in which undisputable, plain, and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached. Stuckes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976). If there is no genuine dispute of material fact and the admitted facts point to the right of one party to a judgment as a matter of law, then summary judgment is the proper remedy. Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981). In a motion for summary judgment, the decision is made based upon the pleadings and evidence of record as to whether there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Southeastern Fid. Ins. Co. v. Tesler, 159 Ga. App. 60, 282 S.E.2d 703 (1981). While the party opposing a motion for summary judgment is entitled to the benefit of all favorable inferences, if, after this is done, the record still shows no genuine issue of a material fact, summary judgment for the moving party is authorized. Shockley v. Henslee, 122 Ga. App. 163, 176 S.E.2d 470 (1970); Cole v. Jordan, 161 Ga. App. 409, 288 S.E.2d 260 (1982); Gurley v. Ford Motor Credit Co., 163 Ga. App. 875, 296 S.E.2d 171 (1982). Subsection (c) of O.C.G.A. § 9-11-56 allows summary judgment only if there is no genuine issue as to any material fact, and the evidence shows that the movant is entitled to judgment as a matter of law. Pugh v. Frank Jackson Lincoln-Mercury, 857 Propriety of Summary Judgment (Cont’d) Inc., 165 Ga. App. 292, 300 S.E.2d 227 (1983). If there is no evidence presented that would create a genuine issue on any material fact, the trial court does not err in granting summary judgment. Houser v. Tilden Fin. Corp., 166 Ga. App. 710, 305 S.E.2d 440 (1983). If the nonexistence of any genuine issue of material fact is established by such credible evidence that on the facts and law the movant is entitled to judgment as a matter of law, the motion should be granted, unless the respondent shows good reason why the respondent is at the time of the hearing unable to present facts in opposition to the motion. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983). If allegations of pleadings are pierced and there is no issue of material fact, so that a party is entitled to judgment, it is incumbent on the court to grant a motion for summary judgment. Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985); McGee v. Gillis, 171 Ga. App. 47, 318 S.E.2d 521 (1984). Motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail. McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 373 S.E.2d 817 (1988). It is permissible to grant a motion for summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. International Bhd. of Boilermakers v. Newman, 116 Ga. App. 590, 158 S.E.2d 298 (1967); Weekes v. Parker, 120 Ga. App. 549, 171 S.E.2d 660 (1969); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970); Metco Plumbing & Heating, Inc. v. Southeastern Plumbing Supply Co., 124 Ga. App. 584, 184 S.E.2d 670 (1971); Smith v. Sandersville Prod. Credit Ass’n, 229 Ga. 65, 189 S.E.2d 432 (1972); Galloway v. Banks County, 139 Ga. App. 649, 229 9-11-56 S.E.2d 127 (1976); McCraw v. Watkins, 242 Ga. 452, 249 S.E.2d 202 (1978); Jackson v. First Bank, 150 Ga. App. 182, 256 S.E.2d 923 (1979); Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979); Jimerson v. Republic Land & Inv. Co., 234 Ga. App. 417, 506 S.E.2d 920 (1998). Because a customer did not present an issue of fact as to whether a store had equal or superior knowledge of a dangerous condition, the trial court did not err in granting the store’s summary judgment motion. Ergas v. Home Depot, Inc., 260 Ga. App. 734, 580 S.E.2d 684 (2003). Evidence should demand verdict. — If no evidence is offered that would form a basis for the conclusions contained in the affidavit, it is error to grant a motion for summary judgment as the proof did not demand as a matter of law, a finding in the plaintiff ’s favor. Bob’s Dairy Barn & Restaurant, Inc. v. I.D.S. Leasing Corp., 135 Ga. App. 227, 217 S.E.2d 462 (1975). Test under subsection (a) of O.C.G.A. § 9-11-56 is not merely that the evidence supports a verdict for the moving party, but that the evidence demands the verdict. Custom Coating, Inc. v. Parsons, 188 Ga. App. 506, 373 S.E.2d 291 (1988). Single outcome must appear without dispute. — Summary judgments should only be granted if, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome. Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980); Bragg v. Missroon, 186 Ga. App. 803, 368 S.E.2d 564 (1988). Improper if genuine issue exists. — On consideration of a motion for summary judgment, the evidence adduced thereon in the form of depositions, affidavits, etc., should be construed most strongly against the movant, and if under any view of the case there appears to be a dispute as to any material issue of fact, summary judgment should not be granted. King v. Schaeffer, 115 Ga. App. 344, 154 S.E.2d 819, aff ’d, 223 Ga. 468, 155 S.E.2d 815 (1967). It is error to grant a motion for summary judgment if the pleadings, depositions, and affidavits do not show that there is no genuine issue as to any mate- 858 rial fact and that the moving party is entitled to judgment as a matter of law. McChargue v. Black Grading Contractors, 119 Ga. App. 35, 166 S.E.2d 43 (1969). Summary judgment cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact. Weekes v. Parker, 120 Ga. App. 549, 171 S.E.2d 660 (1969). Summary judgment should not be granted if there is the slightest doubt as to the facts. Woodford v. Kinney Shoe Corp., 369 F. Supp. 911 (N.D. Ga. 1973). It was error for the trial judge to grant the plaintiff summary judgment as to the issue of settlement because there remained a genuine issue as to a material fact. Ravan v. Stephens, 243 Ga. 289, 253 S.E.2d 753 (1979). Summary judgment is improper if there is a genuine issue as to any material fact. Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 139 Ga. App. 480, 228 S.E.2d 615 (1976); Griffin v. Bremen Steel Co., 161 Ga. App. 768, 288 S.E.2d 874 (1982). Trial court properly denied an employer’s motion for summary judgment in a personal injury action brought against the employer by an auto accident victim because a jury issue existed as to whether the employer’s employee was calling the employer on the employee’s cell phone while driving on the way to work at the time of the auto accident. Clo White Co. v. Lattimore, 263 Ga. App. 839, 590 S.E.2d 381 (2003). Summary judgment was properly denied on a broker’s claim for attorney fees under O.C.G.A. § 13-6-11 because there was no evidence that the client made the contract, agreeing to pay commission on the sale of the home to the broker, in bad faith or that the client’s breach was the result of a sinister motive as a matter of law; issues of fact existed as to whether the client was stubbornly litigious because there was a factual dispute as to the client’s understanding of the client’s obligations. Steel Magnolias Realty, LLC v. Bleakley, 276 Ga. App. 155, 622 S.E.2d 481 (2005). Because the record revealed that a family’s action for trespass, continuing trespass, intentional infliction of emotional 9-11-56 distress, and declaratory judgment was timely filed, and jury questions remained as to the issues of abandonment and the family’s standing to bring the family’s suit against a developer who allegedly destroyed the family’s cemetery, summary judgment was erroneously awarded to the developer. Ceasar v. Shelton Land Co., 285 Ga. App. 421, 646 S.E.2d 689 (2007). In an action to invalidate an allegedly forged quitclaim deed filed by a husband, which transferred an interest in certain property to the husband’s wife, summary judgment was erroneously granted to the husband, as a bankruptcy trustee presented sufficient evidence of disputed issues of material fact concerning the husband’s equitable claim; hence, the matter was remanded for further proceedings under the Quiet Title Act, O.C.G.A. § 23-3-60 et seq. Hurst v. Evans, 284 Ga. App. 274, 643 S.E.2d 824 (2007). Because a genuine dispute precluded the recovery of attorney fees from the attorney by the client based upon the client’s claim of stubborn litigiousness, summary judgment was reversed. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008). Because an actual and ongoing controversy existed regarding the rights of competing parties to a condominium unit, specifically the unit’s owners and the unit’s buyer and disputes concerning ownership of or right of access to land were classic candidates for resolution via declaratory judgment, the trial court correctly denied the owners’ motion for summary judgment on the buyer’s counterclaim for declaratory judgment. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, 2008 Ga. LEXIS 316 (Ga. 2008). If the facts are heatedly contested, with both sides supporting their contentions with affidavits and depositions, it cannot be said that there is no genuine issue as to any material fact. Pritchard v. Neal, 139 Ga. App. 512, 229 S.E.2d 18 (1976). Evidence does not pierce defenses. — When the plaintiff ’s evidence does not in any way address or pierce the defenses to the action, it is error to grant the plaintiff ’s motion for summary judgment. 859 Propriety of Summary Judgment (Cont’d) Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980). Failure to eliminate every issue. — If there are substantial issues of fact, it is error for the court to grant summary judgment. Caldwell v. Mayor of Savannah, 101 Ga. App. 683, 115 S.E.2d 403 (1960) (decided under Ga. L. 1959, p. 234, § 1 et seq.). If a defendant fails to eliminate every genuine issue of material fact, the judge errs in granting a motion for summary judgment. Smithwick v. No. 2 D Curtis Mock Assocs., 127 Ga. App. 749, 195 S.E.2d 271 (1972). If the defendant fails to carry the burden of showing that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law as to all matters for which relief is sought, the denial of a motion for summary judgment is correct. P.F. Collier, Inc. v. Dreesen, 128 Ga. App. 64, 195 S.E.2d 766 (1973). If more than one inference can be drawn from the evidence, the duty of solving the mystery should be placed upon the jury and not the trial judge; this is true with respect to circumstantial evidence as well as direct evidence. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962) (decided under Ga. L. 1959, p. 234, § 1 et seq.). It was error to grant summary judgment in favor of an anesthesiologist association group and a doctor in an action by an independent anesthesiologist and a professional corporation that claimed conspiracy to restrain trade and tortious interference stemming from an arrangement in which the independent anesthesiologist was permitted to provide services at a hospital served by the group because it was for the jury to determine whether the group improperly manipulated the surgery schedule, the assignment of cases, and first call duty so that the independent anesthesiologist and two colleagues were not used or preferred by the doctors and hospital staff. Mulligan v. Alta Anesthesia Assocs. of Ga., P.C., 260 9-11-56 Ga. App. 727, 580 S.E.2d 678 (2003). Denial may be proper even absent responsive affidavit. — Because a summary judgment motion was not adequately supported by the evidence, it was appropriate for the trial court to deny the motion even in the absence of a responsive affidavit. Beard v. McDowell, 174 Ga. App. 793, 331 S.E.2d 104 (1985). Conflicting affidavits. — If the affidavits in the record are in conflict as to material facts, the court does not err in denying summary judgment since there remain substantial issues to be determined. W.J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 176 S.E.2d 633 (1970). Grant of motion on basis of admissions. — If a party fails to answer a request for admissions within the requisite time, and the admissions remove all issues of fact, the other party is entitled to a grant of that party’s motion for summary judgment. Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215, 264 S.E.2d 725 (1980). Denial in face of offsetting counterclaim. — Trial court may, in the court’s discretion, deny summary judgment in the face of a valid, pending counterclaim, if there is a reasonable probability that the plaintiff ’s recovery will be greatly mitigated or even offset by the defendant’s recovery on trial of the counterclaim. Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980). There is no sound reason to conclude that, if there is a pending valid counterclaim, the trial court must deny a persuasive and valid motion for summary judgment, or alternatively, that it is error per se to grant a motion for summary judgment if there is a pending, valid counterclaim. Williams v. Church’s Fried Chicken, Inc., 158 Ga. App. 26, 279 S.E.2d 465 (1981). Trial court does not commit error per se by granting summary judgment in a case with a valid pending counterclaim. Ackerman v. First Nat’l Bank, 239 Ga. App. 304, 521 S.E.2d 221 (1999). Error to deny judgment if ultimate result is clear. — It is error to deny a trial when there is a genuine dispute of facts, but it is just as much error, or 860 perhaps more in cases of hardship or if the impetus is given to strike suits, to deny or postpone judgment if the ultimate legal result is clearly indicated. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972). Dispute over irrelevant or de minimus matters. — Because not every detail of sundry disputed factual matters was conclusively resolved in the pleadings or through discovery procedures, but examination of the record indicated that such disputed matters were either irrelevant or, at best, de minimis, the evidence clearly indicated that there remained in the case no genuine issues of material fact that would preclude an award of summary judgment, and the court below did not err in granting the plaintiff ’s motion for summary judgment. James v. Ford Motor Credit Corp., 166 Ga. App. 879, 305 S.E.2d 604 (1983). Failure to exhaust administrative remedies. — Trial court properly granted summary judgment to the industrial loan commissioner after the loan companies sought a declaratory judgment that the industrial loan commissioner did not have jurisdiction over its business practice of using an out-of-state bank to make loans through the loan companies; since the industrial loan commissioner had not ruled on whether the practice violated the Georgia Industrial Loan Act, O.C.G.A. § 7-3-1 et seq., the loan companies had not exhausted their administrative remedies under the Act and, thus, were not entitled to seek declaratory relief from the courts. USA Payday Cash Advance Ctrs. v. Oxendine, 262 Ga. App. 632, 585 S.E.2d 924 (2003). Summary judgment improper if possible to infer acting within scope of employment. — In a personal injury case in which an employee was involved in a collision during the employee’s day off, but because the employee regularly made deliveries on that day between the employer and affiliated companies, summary judgment for the employer was improper because a jury could have inferred that the employee was acting within the scope of employment at the time; summary judgment for the affiliates was proper because the employee was acting, at most, 9-11-56 as an independent contractor with respect to them. Thompson v. Club Group, Ltd., 251 Ga. App. 356, 553 S.E.2d 842 (2001). Summary judgment for plaintiff. — Mere want of knowledge does not prevent summary judgment in favor of the plaintiff; it should be a sufficient ground of defense only when it appears that a thorough investigation has been made and that ignorance persists after genuine efforts to ascertain facts about the validity of the plaintiff ’s claim. Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971). Upon a motion for summary judgment, if the defenses set up in an answer are pierced by the plaintiff ’s affidavits and the defendant fails to respond with specific facts showing a genuine issue for trial, summary judgment is properly granted. Soni v. Coppedge, 159 Ga. App. 889, 285 S.E.2d 604 (1981). Trial court properly granted summary judgment to sellers on the sellers’ suit for non-payment of purchase-money promissory notes as the buyers waived the buyers’ defense of fraud by not electing to pursue a remedy regarding it and, instead, continuing to pay on the notes, and the buyers did not show that the sellers’ suit was filed beyond the applicable six-year statute of limitations. Little Sky, Inc. v. Rybka, 264 Ga. App. 744, 592 S.E.2d 154 (2003). Summary judgment when statute inapplicable. — Trial court did not have to consider the testing company’s summary judgment motion regarding whether the company and others had a right to a refund of the unlawful collection of excessive fees as the court properly granted the state environmental agency’s motion to dismiss because the statute under which the testing company sought the refund, O.C.G.A. § 48-2-35, did not apply because the state revenue commissioner did not collect or administer the fee for which the testing company and others sought the refund, and that statute only applied to the illegal collection of tax or license made by the state revenue commissioner. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 602 S.E.2d 153 (2004). Trial court properly granted summary judgment to the county on the telecommu- 861 Propriety of Summary Judgment (Cont’d) nications company’s challenge to the county’s ordinance imposing a one-time permit fee on telecommunications companies applying to use the county’s public rights-of-way. Due to state statutory law, no question existed that the county had the right to enforce the county’s ordinance imposing the permit fee as the fee was reasonably related to the county’s attempt to recoup the county’s administrative cost for processing the permit; furthermore, the telecommunications company did not show that application of the ordinance violated the company’s equal protection rights. BellSouth Telecomms., Inc. v. Cobb County, 277 Ga. 314, 588 S.E.2d 704 (2003). Because the defendant offered nothing to refute the plaintiff ’s proof, a grant of summary judgment was demanded under subsection (e) of O.C.G.A. § 9-11-56. General Am.